The second quarter of 2012 has been a busy one in the legal arena! The Michigan Supreme Court decided a case that eviscerated the rights of minors and persons deemed to be incompetent. If that wasn't bad enough, the legislature is very busy attempting to further chip away at your rights doing its level best to strip Michigan citizens of every right they might have to seek redress if they are injured in car accidents. Please read below for the details. If you are not deeply concerned yet, you should be. We urge you all to contact your state house and senate representatives and ask them to vote "NO" against these latest initiatives. Read on.

Sincerely,

Wayne, Ronni, Maureen and Mark

Firm News

M & T ABOUT TOWN

Congratulations to Wayne J. Miller, Maureen H. Kinsella, and Matthew C. Rettig on being selected for inclusion to the 2012 Michigan Super Lawyers and Rising Stars list. Your selection demonstrates that you have achieved a high degree of peer recognition and professional achievement.

NEWEST ADDITION TO M & T

Michael C. Dennis focuses his practice in the area of No-Fault Insurance Law. He holds a B.A. in Criminal Justice from Michigan State University and received his J.D. from the University of Toledo College of Law in 2011.

While in law school, he served as a judicial extern for the Honorable Joseph A. Costello Jr., clerked for the Monroe County Prosecutor's Office, and received awards for outstanding achievements in trial practice.

Michael is a member of the State Bar of Michigan, Oakland County Bar Association and the Michigan Association for Justice. Welcome Michael!

The Supreme Court has issued a major opinion in the case of Joseph v. ACIA. This case holds that minority or mental incompetence are no longer excuses for violating the No-Fault 1 year back rule. In doing so, the Court reversed its 2010 decision in Regents of the University of Michigan v. Titan and reinstated its 2006 decision in Cameron v. ACIA. Joseph and Cameron before it are among the very worst of the decisions of this Supreme Court in recent years. Nevertheless, it is now the law. The message is clear: we must be vigilant as the 1 year deadline approaches. Filing a lawsuit is the only sure way of stopping the running of the 1 year back rule.

The Supreme Court continues its relentless assault on injury claims with its decision in Defrain v State Farm. This is for Uninsured Motorist contracts only; this does not apply to No-Fault PIP claims which are governed by separate notice and statute of limitations rules.

In Defrain, the plaintiff had a contract of insurance with State Farm that contained a 30 day "notice-of-claim" provision. The plaintiff was in ICU well beyond 30 days and did not notify State Farm that an uninsured motorist struck him and thus he had an uninsured motorist claim. The Supreme Court's insurance oriented majority obliterated the long standing rule requiring the insurance company to be prejudiced by technical late notice and said: no uninsured motorist benefits were available to Defrain because State Farm did not receive notice within 30 days.

What does Defrain mean for you:

1. All notice-of-claim provisions, even those that are unreasonably and impossibly short will be enforced against all injured citizens, even those so physically or mentally injured that they cannot take care of their personal business until long after the 30 days expires.

2. The "fine print" within insurance contracts is considered sacred by this Supreme Court. Even though citizens are powerless to negotiate the terms of their insurance contracts and for the most part have no understanding of what the contracts say, those contracts will be blindly adhered to by the Supreme Court.

Should you have questions about this or any other recent Supreme Court decision, contact us!

UPDATE ON THE MICHIGAN LEGISLATURE'S AND INSURANCE INDUSTRY'S ASSAULT ON MICHIGAN'S AUTO NO-FAULT SYSTEM

OUR WORK IS FAR FROM DONE!

Last year through a targeted and concerted grass roots effort the citizens of our state were successful in blocking a horrific No-Fault "reform" bill from passing out of the House of Representatives. DON'T GET COMPLACENT. Recently new legislation has been introduced that will slowly put fault back into the No-Fault Act by chipping away at coverage for certain groups of persons. The new bills propose immediate disqualification from No-Fault benefits to the following:

Persons not lawfully in the US;

Persons who are intoxicated or under the influence of alcohol or drugs and who have any amount of a controlled substance in their body;

Persons either committing or fleeing from crimes punishable by more than one year in prison;

Passengers in stolen cars who knew or had reason to believe the motor vehicle or motorcycle was stolen;

And like the older legislation that proposed significant caps and cuts on benefits, there is no provision or promise in any of these new bills that our auto insurance premiums will be reduced. Rather, these disqualifications put "fault" into the "no-fault" system.

The ramifications of these shortsighted proposals are far reaching. Let's say that a loved one suffers a severe injury in a car or motorcycle accident while legally intoxicated. Under the proposed changes to the No-Fault Act, your loved one will lose out on precious medical and rehabilitation benefits. The consequences of these changes will be dire. The burden of caring for these individuals will fall to the Medicaid system (which affects all Michigan taxpayers), health care providers and health insurers. So for those of you who think these reforms make sense, please think twice. If these groups of persons go without No-Fault insurance just who do you think will wind up paying for their care?

Regarding the previous litigation that contained varying levels of insurance coverages and caps, fee schedules and life time caps - there is a real fear that after the state and federal elections are concluded in November, the lame duck sessions of the state house and senate will reconsider these bills and approve them as the outgoing legislators just won't care anymore.

BE CLEAR: THE FIGHT IS FAR FROM OVER. WE ALL MUST CONTINUE OUR EFFORTS TO CONTACT AND STAY IN CONTACT WITH OUR LEGISLATORS --PARTICULARLY OUR REPUBLICAN LEGISLATORS -- TO VOTE "NO" AGAINST ALL OF THESE BILLS BECAUSE THEY ARE NOT AT ALL IN THE BEST INTERESTS OF THE CITIZENS OF MICHIGAN.

OUR JOB IS NOT YET DONE BY A LONG STRETCH SO PLEASE KEEP YOUR EFFORTS UP!!!

Mark Schreier handled this case, which settled early in litigation for the policy limits of $100,000.00. The case involved an intersection accident, in which the defendant rolled through a red light and into oncoming traffic. The accident occurred as our 63 year old client and her mother returned home from gathering food for a soup kitchen at which they volunteered.

The case involved many interesting and complicated medical issues. Ten years before the accident our client had a cerebral aneurysm rupture for which she underwent successful surgery. Following this event, she experienced slow speech and some short term memory issues, but otherwise her cognition was fine. She lived independently, in her own home, and regularly participated in hobbies and other activities.

Immediately following the accident, our client experienced various musculoskeletal complaints, primarily in her knees, shoulder, and neck. There was no loss of consciousness. In the following weeks, however, she began suffering from headaches and dizziness. Her family noticed that she spoke differently, and they had trouble understanding her. Her ability to care for her daily activities deteriorated. Rather then help out her elderly parents, as she did before the accident, our client relied upon her 83 year old mother and others to provide her with daily care and supervision. She moved back into her parents' home and out of the home that she owned and lived in for over 40 years. Her life become a maze of medical treatment and therapies. While the defense endeavored to relate certain of our client's medical issues to her preexisting cerebral aneurysm rupture, we presented a bigger picture of how the accident significantly impacted our client's quality of life and dramatically affected her independence.

U.S. DISTRICT COURT GRANTS PROVIDERS SUMMARY JUDGMENT IN CASE INVOLVING INTERPRETATION OF THE INTENTIONAL ACT EXCLUSION TO THE NO-FAULT ACT: LIGHTHOUSE V ALLSTATE

In our December newsletter we told you that the Michigan Supreme Court had denied an invitation from the United States District Court for the Eastern District of Michigan to answer two certified questions: first, whether a bodily injury is suffered intentionally when a person engages in reckless conduct that would lead a reasonable person to know that injury was substantially certain to occur, even though there is no evidence that the injured person subjectively intended to cause the injury, and second, the insurer has the burden of proof on this issue.

After the case returned to the U.S. District Court, the Court granted Plaintiffs' Motion for Summary Judgment and held that under Michigan's No-Fault Act, an injury is suffered intentionally only if the actor subjectively intended both the act and the injury. The Court also held that intentional injury is an exclusion from coverage, and therefore the insurer has the burden of proof on this issue.

The case involved a young man that suffered a catastrophic brain injury when he climbed on top of a stopped vehicle, which then proceeded to accelerate forward and throw him to the ground. Though there existed no evidence that the young man intended to hurt himself, the insurer refused to pay any benefits based on its argument that the statute requires the imposition of an objective standard, i.e., if a person engages in an act knowing that bodily injury is substantially certain to occur, then any resulting injury arises from an intentional act. This significant ruling blocks insurers from denying No-Fault coverage for merely reckless acts, confirms that disqualifications can only occur if the injured person intended to hurt himself, i.e., a suicide attempt, and confirms that the insurer must prove that the injury was intentional in order to withhold benefits. Injuries that are the unintended result of an intentional act are not excluded from coverage, even if the injury was foreseeable and even if the act causing the injury was negligent or reckless.

In April 2012, Governor Snyder signed into law a repeal of the requirement that motorcyclists wear helmets. While we strongly question the wisdom of this law and are certain that more serious injuries will result, the law is now a fact of life. The law allows motorcyclists to ride without helmets IF they purchase at least $20,000 in first party medical insurance. The question has been raised about whether the failure to purchase this insurance would disqualify a person from No-Fault PIP benefits in the event of a car accident. The early answer is NO. This is because the No-Fault law requires purchase of motorcycle liability coverage, not first party motorcycle medical insurance. The failure to purchase motorcycle medical insurance merely renders the helmetless motorcycle rider guilty of violating the helmet law. The failure to purchase motorcycle liability insurance would result in a disqualification from No-Fault benefits.

There are a number of additional decisions pending in the Supreme Court for probable release this summer. We expect that these decisions will continue the judicial assault on the No-Fault law. We will promptly alert this community as these decisions descendupon us.

NEW LITERATURE ON CASE MANAGERS

No-Fault insurers occasionally have difficulty understanding why case managers are needed. New literature makes clear that the time pressure on physicians makes it extremely difficult to adequately convey necessary information. A recent article in Newsweek commented: "In another study that taped 34 physicians during more than 300 visits with patients, the doctors spent on average 1.3 minutes conveying crucial information about the patient's condition and treatment, and most of the information they provided was far too technical for the average patient to grasp...". The managed care revolution prevents doctors from spending essential counseling time with their patients. Conveying this essential information is one of the roles played by case managers. If insurers do not understand the reality of modern day medicine, case managers must be prepared to educate the insurers.

About Our Law Firm

Miller & Tischler, P.C., represents survivors of catastrophic brain and spinal injuries, their families and their professional service providers who are having difficulty pursuing their entitlement to receive No-Fault benefits for injuries sustained in motor vehicle accidents. We help our clients understand how their No-Fault insurance may coordinate with other kinds of insurances they have whether it be private health insurance, Medicaid, Medicare, Workers' Compensation, or Veterans benefits. We also assist our clients in learning about and obtaining all of the benefits to which they are entitled, whether they be individuals or service providers.